SafeWork NSW v Pendle Ham & Bacon Curers Pty Ltd [2024] NSWDC 395

SafeWork NSW v Pendle Ham & Bacon Curers Pty Ltd [2024] NSWDC 395

The recorded interview had only limited probative value because the questions and answers did not clearly distinguish between the corporate defendants or identify which entity did what, and Michael Zammit appeared to share the witnesses' lack of understanding of the corporate structure. Although it was reasonably open to find that his statements were admissions within s 87(1)(b) of the Evidence Act 1995, the prosecution sought to use the interview on central issues of conduct, knowledge, intention or recklessness for Category 1 offences. Michael Zammit was an associated defendant who could not be compelled and would not give evidence, so the corporate defendants could not cross-examine...

Jurisdiction
Australia
Judgment Date
02 September 2024
Procedural Posture
Criminal Work Health and Safety Prosecution Under the Work Health and Safety Act 2011 / Procedural Ruling During Joint Trial on Objection to Tender of Recorded Interview Transcript
Outcome
The corporate defendants' objection was upheld and the transcript of the recorded interview was excluded.
Legal Topics
['admissibility of Evidence' 'recorded Interview' 'admissions by Employee or Agent' 'unfair Prejudice' 'non Compellability of Associated Defendant' 'corporate Attribution']
['evidence' 'criminal Law' 'work Health and Safety'] ['admissibility of Evidence' 'recorded Interview' 'admissions by Employee or Agent' 'unfair Prejudice' 'non Compellability of Associated Defendant' 'corporate Attribution']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Criminal Work Health and Safety Prosecution Under the Work Health and Safety Act 2011 / Procedural Ruling During Joint Trial on Objection to Tender of Recorded Interview Transcript

Legal Issues

  1. 1 ['Whether the transcript of the recorded interview between SafeWork NSW inspectors and Michael Zammit was admissible against the corporate defendants.' 'Whether admission of the recorded interview would cause unfair prejudice to Michael Zammit because he was also a defendant and the interview was inadmissible against him under s 172(2) of the Work Health and Safety Act 2011.' 'Whether representations made by Michael Zammit in the recorded interview were admissions made with authority by the corporate defendants within s 87(1)(b) of the Evidence Act 1995.' 'Whether the probative value of the recorded interview was outweighed by the danger of unfair prejudice under ss 135 or 137 of the Evidence Act 1995, given Michael Zammit could not be compelled and would not be cross-examined.']

Ratio Decidendi

The recorded interview had only limited probative value because the questions and answers did not clearly distinguish between the corporate defendants or identify which entity did what, and Michael Zammit appeared to share the witnesses' lack of understanding of the corporate structure. Although it was reasonably open to find that his statements were admissions within s 87(1)(b) of the Evidence Act 1995, the prosecution sought to use the interview on central issues of conduct, knowledge, intention or recklessness for Category 1 offences. Michael Zammit was an associated defendant who could not be compelled and would not give evidence, so the corporate defendants could not cross-examine...

Court Disposition

The corporate defendants' objection was upheld and the transcript of the recorded interview was excluded.

Orders

  • ['The transcript of the recorded interview between Inspectors Ball and Barry of SafeWork NSW and Michael Zammit conducted on 22 September 2021 is excluded.']